State and county considering lawsuit
With the U.S. Fish and Wildlife Service announcing Wednesday, November 12 they would list the Gunnison sage grouse as a threatened species under the Endangered Species Act, Gunnison County officials and area landowners marked the end of a decade-long fight to keep conservation efforts in local hands.
Whether or not they won that fight will be determined over the next six to 12 months as the FWS works to draft a rule that will focus on preserving the species, with special consideration given to areas that have proven they can do just that.
In announcing the FWS decision, director Dan Ashe told public officials and stakeholders by phone that conservation efforts, especially those in the Gunnison Basin, would be respected as the rules are developed.
“The important thing to remember about a threatened determination is that it allows us to tailor the restrictions in the law,” Ashe said. “I would say hats off to the Colorado Parks and Wildlife and folks in the Gunnison Basin in particular for the work you have done, because it is really your work that has allowed us the opportunity to make a ‘threatened’ determination and to now exercise the substantial flexibility that exists under the endangered species act.”
During the phone conference, Ashe was sure to thank everyone who had participated in conservation efforts to that point, but said a species is listed as ‘threatened’ if there’s a “likelihood that the species could become endangered,” or is at risk of going extinct, Ashe said.
Gunnison County wildlife coordinator Jim Cochran said by listing the sage grouse as threatened, the FWS has the flexibility to write rules that are more nuanced and localized and could take into account the County’s efforts over the years. That flexibility comes through a section of the law known as 4(d).
But that fact might be lost to the frustration being felt over the listing.
“It’s literally throwing a bomb into an established conservation process,” Cochran says. “This county has literally spent millions of dollars on this program and our large landowners have allowed all kinds of conservation activities on their lands. But that’s going to slow down if not go completely away. This is coming up on the twentieth year in the Gunnison Basin that we’ve been working on this and when the Service is at the table they’ve never said it’s not good enough or told us what we need to do.
“It’s very frustrating to have done everything we can and then hear them say that’s not enough. Well that’s great, but what is enough,” Cochran continued. “You can imagine the frustration.”
The Gunnison sage grouse was only officially recognized as a unique species in 2000 and shortly after was considered for ESA protections, before the Fish and Wildlife Service decided in 2006 the listing wasn’t warranted.
Gunnison County commissioner Jonathan Houck says what happened next said a lot about the community’s commitment to conserving habitat and protecting the Gunnison sage grouse population.
“In 2006 when the decision was made not to list, if the community’s goal, the County’s goal was to avoid a listing, we would have stopped everything there and said ‘Wow, we’re done’,” Houck says. “But since then we’ve continued all these efforts and our ranching community has been really responsive and their land use is really making a positive difference.”
Gunnison Basin is believed to hold almost 90 percent of the nearly 5,000 Gunnison Sage Grouse that exist and more than 60 percent of the birds’ habitat, which ranges as far as San Miguel County to the south and west into one county in southeastern Utah. The birds, however, are only believed to inhabit about 940,000 acres of that area today.
Inside Gunnison County, almost 70 percent of the Gunnison sage grouse habitat is privately owned, while the remainder is shared by federal and state agencies. But almost all of the prime lek areas, like wet, irrigated hay meadows, habitat maps show, are on private land.
During his announcement of the listing, Ashe was careful to reassure the ranching community that, as long as they were doing what they could, the listing shouldn’t have too much of an impact.
“It means that if you are a rancher participating in the sage grouse initiative, you will see no change,” he said. “You have coverage under the Endangered Species Act that you can bank on that assurance.”
Ashe said the FWS’ next priority would be to develop a ‘conference opinion’ with the Natural Resources Conservation Service, which he said would be in place when the listing goes into effect 30 days from the time it is published in the national register sometime next week.
After the listing goes into effect, Ashe said the process to draft a 4(d) rule, consider public comment and complete the process would likely take somewhere between six months and a year.
“I do have some concerns that some of the folks who have worked so hard for so long are going to say, ‘I’ve had enough’. If everything we’re doing is so wrong …” Houck said, pausing to collect himself. “You can’t get people to voluntarily cooperate at the level they have and not expect some acknowledgement. Sure, they’ve gotten some verbal acknowledgements and things. But I don’t know how they could reconcile a decision like this and expect to maintain an excitement or a willingness around private land conservation.”
Since 2006, Gunnison County has changed its Land Use Resolution to reflect conservation goals and committed funds to conservation programs, even putting a wildlife coordinator on staff. It has also partnered with private landowners to put about 26,000 acres in conservation programs, with another 26,000 acres in process.
During the announcement, Ashe said he would be working with the Governor’s office and local authorities “to have a complete and full understanding of the protections that are in place at the local level,” so they can draft an appropriate 4(d) rule. When asked about the impact a listing would have on grazing on public lands, Ashe said, “Our requirement is to look at the status of the bird and threats to the bird. We’re not allowed by the law to consider any economic or other affects of the listing.”
Governor Hickenlooper has promised to fight federal protections for the bird and Houck says the County’s position aligns with the state. Both the state and the counties involved would ask a court to look at the population data compiled by Colorado Parks and Wildlife and force the FWS to do the same.
“We feel that a lot of what we’ve put forward from CPW, we don’t know that it’s been used in reaching the decision. A lawsuit could look at process, it could look at science and I don’t know how they would approach it,” Houck said. “But that’s definitely one of the tools in the toolbox. We will at least look and see if [a lawsuit] is our best option.”